adversely affect international trade between the U.S. and foreign countries and injure international shipping, including U.S.-flag

vessels.

registered.

Under both international and domestic law, vessels have long been considered as an extension of the state in which they are This doctrine, i.e. giving recognition to a vessel's country of registry, called the flag state, has been followed for very practical reasons. Unlike facilities such as manufacturing plants which have fixed geographic locations, vessels constantly move, spending limited periods of time in ports of many countries and most of their time on the high seas beyond the territorial jurisdiction of any country. To foster a legal regime for vessels which would impose differing and changing national rules based on temporary contacts, would foster chaotic and contradictory regulation. It would make the uniform application of any law and foreseeability of long term relationships impossible and disrupt trade by the resulting inefficiencies and clash of sovereignty and rules. It is for these very practical reasons and to reflect the sovereignty of the state where the vessel owners are incorporated and flagged, that flag state regulation has been uniformly accepted by the nations of the world under international law and comity. In any event, the absolute jurisdiction of all sovereign states, including the United States, does not extend beyond their own territorial waters. This approach based on the flag state concept has permitted a single and predictable legal regime for each vessel. This long-standing position of the nations of the world has been recognized and followed by the United States as a matter of

comity. In Wildenhus's Case, 120 U.S. 1 S.Ct. (1887), the Supreme Court said:

"From experience, however, it was found
long ago that it would be beneficial to
commerce if the local government would
abstain from interfering with the internal
discipline of the ship, and the general
regulation of the rights and duties of the
officers and crew towards the vessel or among
themselves. And so by comity it came to be
generally understood among civilized nations
that all matters of discipline and all things
done on board which affected only the vessel
or those belonging to her, and did not
involve the peace or dignity of the country,
or of the tranquility of the port, should be
left by the local government to be dealt with
by the authorities of the nation to which the
vessel belonged as the laws of that nation or
the interests of its commerce should
require."

In McCulloch v. Sociedad Nacional, 372 U.S. 10 (1963), the Supreme Court reviewed the adverse impact of an attempt by the United States to impose pervasive regulation on the internal order of foreign ships and stated:

We note that both of these points rely on
additional American contacts and therefore
necessarily presume the validity of the
"balancing of contacts" theory of the Board.
But to follow such a suggested procedure to
the ultimate might require that the Board
inquire into the internal discipline and order
of all foreign vessels calling at American
ports. Such activity would raise considerable
disturbance not only in the field of maritime
law but in our international relations as well.
In addition, enforcement of Board orders would
project the courts into application of the
sanctions of the Act to foreign-flag ships on a
purely ad hoc weighing of contacts basis. This
would inevitably lead to embarrassment in foreign
affairs and be entirely infeasible in actual
practice. 372 U.S. at p. 19.

II.

THE BILL WOULD VIOLATE INTERNATIONAL

AGREEMENTS TO WHICH THE UNITED STATES IS A PARTY

The extension of U.S. jurisdiction into labor matters

involving foreign-flag vessels would further be in direct violation of existing treaty obligations of the United States.

A.

International Labor Organization Convention 147.

The United States is a party to ILO Convention 147 which it ratified on 12 May 1988. This Convention places the responsibility for matters envisaged by the Clay Bill with the Country of Registry, and provides for a complaint procedure.

On February 1, 1988, the Senate ratified by a vote of 84-0 and President Reagan on May 12, 1988 signed the ratification documents placing in force ILO Convention 147. This convention recognizes the national registry of ships and in Article 2(b) places squarely on each individual state the duty:

(b)

to exercise effective jurisdiction
or control over ships which are
registered in its territory in
respect of--

(i) safety standards, including

standards of competency, hours of
work and manning, prescribed by
national laws or regulation;

(ii) social security measures

prescribed by national laws or
regulations;

(iii) shipboard conditions of employment
and shipboard living arrangements
prescribed by national laws or
regulations, or laid down by
competent courts in a manner

equally binding on the shipowners

and seafarers concerned;

The Convention is the preeminent international instrument governing labour conditions on ships. It contains a specific procedure for dealing with complaints of adverse labour

conditions which are verified following inspection of foreign flag vessels in the ports of a member state. In such cases the member state may make a report to the relevant flag state and, in addition, may detain the ship until the adverse conditions are rectified.

B.

1958 Convention on the High Seas

Likewise, the United States is party to the 1958 Convention on the High Seas (signed April 28, 1958 and entered into on September 30, 1962) which recognized the right of each individual state to exercise its jurisdiction over the "administrative, technical and social matters" of ships flying its flag. (See Article 5.) The Treaty further placed on each state the requirement to take measures to insure the safety at sea with regard to "the manning of ships and labor conditions for crews taking into account the applicable international labor instruments." (See Article 10.)

C.

Treaties of Friendship, Commerce and Navigation

The United States has furthermore entered into Friendship Commerce and Navigation Treaties which recognize the right of

flag states over their vessels and grant most favored nation status. The treaty between the United States and Greece, Treaty of Friendship, Commerce and Navigation, August 3 and December 26, 1951, United States-Greece, 5 U.S.T. 1829, T.I.A.S. No.3057,

provides in relevant part that:

Nationals and companies of either party shall

be permitted to engage, within the

territories of the other party, accountants
and other technical experts, executive
personnel, attorneys, agents and other
employees of their choice . .

[emphasis

added].

The National Labor Relations Act's (NLRA) mandatory requirement, for example, under Section 8 of that Act requiring that employers bargain with a certified union about "terms and conditions of employment," would seriously impact this freedom of choice provision if the Clay bill is enacted and be contrary to this Treaty. The provisions in the Greek Treaty apply to all treaty nations under the usual most favored nation provision found in each Friendship, Commerce and Navigation Agreement. Each of the treaties further recognize the right of the flag state to regulate its own vessels. See e.g. Treaty Between the United States of America and The Federal Republic of Germany, October 29, 1954, Articles XIX, XX, XXI, XXII;. See also the convention cited in Wildenhus's Case and the agreements cited in Note 2 by Mr. Justice Douglas in McCulloch v. Sociedad Nacional, 372 U.S. 10, 22.